The UK Court of Appeal recently ruled that a website’s use of live match data from football matches did not infringe copyright, but confirmed it would consider, in due course, whether a database right had been infringed. First, the Court has referred a question to the European Court of Justice as to whether acts alleged to infringe a database right take place when the website is based outside the UK.

The website in question, Football Dataco, assembles data relating to English and Scottish football matches in progress into a database known as “Football Live”. The data comprises live information on goals scored, penalties awarded, yellow/red cards given and substitutions made. Football Dataco claimed that the compilation “involves considerable skill, effort, discretion and/or intellectual input”.

Sportradar, a German company and its Swiss parent, also assemble data relating to live football and other sports, on to a website called “Sport Live Data”. The data is stored on web servers in Germany and Austria but is accessible via links from websites elsewhere, including from the UK.

Football Dataco alleged that Sportradar infringed their copyright and database right in Football Live, claiming that “telltale” signs showed that copying had occurred, for example incorrect goal attribution. Sportradar denied this allegation and claimed that the “telltale” signs were explicable, for example by way of an incorrect announcement at a particular match.

Football Dataco took an action against Sportradar in the UK High Court. Sportradar challenged the jurisdiction of the English High Court to hear the case, alleging that they were not committing any act of infringement in the UK and were domiciled in Germany and Switzerland. The High Court had held that acts of re-utilization and making available had been committed online and therefore took place only where the transmission took place, not where it is received.

The Court of Appeal said the Database Directive does not create a Community-wide right. It then considered copyright and database rights in turn.

The High Court had held that it was arguable that Sportradar was jointly liable for the acts of infringement of copyright and database right by users in the UK who accessed the data. However, the Court of Appeal held that neither Sportradar nor UK users had infringed Football Dataco’s copyright by reproducing or making available their data.

The Court of Appeal agreed that the English Courts could hear the allegations in respect of database right infringement where the infringement occurred in the UK but referred the question of where infringement had occurred to the Court of Justice.

This decision highlights the difficulty facing clients in enforcing copyright in a database and the higher bar to be reached in relation to creative skill that is required in order to move from the stand-alone database right to enforceable copyright in a database.

Contributed by Louise Butler, Carol Plunkett.

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